Citation Nr: 21064268 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-32 736 DATE: October 19, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for a head scar is denied. Entitlement to service connection for a skull disorder is denied. Entitlement to service connection for a sleep disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a TBI at any time during or approximate to the pendency of the claim. The preponderance of the evidence of record is also against finding that a neurocognitive disorder began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that an acquired psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had a head scar at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had a skull disorder at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence is against finding that a sleep disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a head scar are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a skull disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1964 to December 1967. He testified before a Decision Review Officer during a May 2015 hearing. This matter is on appeal from a March 2015 rating decision. The case was denied by the Board of Veterans' Appeals (Board) in a March 2019 decision. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in March 2020, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. The case was remanded in December 2020 for development in accordance with the JMR. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a TBI The Veteran contends that he has a TBI due to being hit in the head with an object by an anti-war protestor. May 2015 Hearing Transcript at 5. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a TBI, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Despite consistent treatment from May 2008 to November 2020, VA treatment records do not contain a diagnosis of a TBI. Neurological examinations repeatedly show no diagnosis of a TBI, or any symptoms associated with a TBI. The Veteran had a neurocognitive screening in October 2015. He reported being struck in the head by war protestors at which point he lost consciousness in 1967. The Veteran was diagnosed with anxiety disorder not otherwise specified (NOS) and unspecified neurocognitive disorder. No diagnosis of a TBI was rendered. To the extent that the October 2015 neurocognitive screening shows a diagnosis of unspecified neurocognitive disorder, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. While the Veteran is competent to report that he was struck in the head in 1967, his reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. The Veteran testified at his May 2015 hearing that the injury happened around December 1, 1967. He testified that his ship returned to the United States around November 5, 1967, and that he was released from service on December 21, 1967, so that the injury happened between that time. The Veteran's separation examination is dated December 14, 1967. It showed a normal head, face, neck, and scalp, as well as a normal neurologic system. No complaints pertaining to a head injury causing loss of consciousness were reported. His examination specifically shows that he had no defects and diagnoses, or significant or interval history considered disabling. A July 2008 treatment record shows that the Veteran's neurologic history specifically included no head trauma. No evidence other than the Veteran's own reports has been submitted to support the incurrence of this injury. In this case, considering the lack of any findings pertaining to a TBI in the December 1967 separation examination, as well as post-service treatment records showing a denial of any history of head injury, the Veteran's reports in association with this claim lack credibility, and the evidence weighs against finding that the injury occurred. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, after interviewing the Veteran and reviewing the claims file, the March 2021 VA psychiatric examiner opined that the records did not support that the Veteran's claimed personal assault of being attacked by anti-war protestors occurred. The rationale was that they found no records that clearly, directly showed evidence that the assault did occur. While the Veteran believes he has a TBI, and is competent to report neurologic symptoms, he does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As regards his diagnosed neurocognitive disorder, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service head injury occurred. 2. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has an acquired psychiatric disorder that is either due to being shot at while aboard the USS Haleakala in the Gulf of Tonkin or due to being struck by an anti-war protestor. August 2011 stressor statements. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has been diagnosed during this appeal with anxiety disorder, not otherwise specified (NOS) and unspecified anxiety disorder, and his reported stressor of being attacked in the Gulf of Tonkin is conceded, the preponderance of the evidence weighs against finding that the Veteran's psychiatric diagnoses began during service or are otherwise related to an in-service injury, event, or disease. VA records show the Veteran was not diagnosed with anxiety disorder NOS until August 2014, decades after his separation from service. While the Veteran is competent to report having experienced psychiatric symptoms of since service, he does not have the training or credentials to provide a diagnosis in this case or determine that these symptoms were manifestations of anxiety disorder NOS or unspecified anxiety disorder. Jandreau, 492 F.3d at 1377 n.4. Further, the December 2015 VA examiner opined that the Veteran's anxiety is not at least as likely as not related to an in-service injury, event, or disease, including his conceded stressor while in the Gulf of Tonkin. The rationale was that the Veteran was not treated for anxiety in service. The examiner reported that the Veteran had anxiety disorder diagnosis dating decades post military. The examiner concluded that, from an examination, the Veteran's anxiety unspecified was not incurred in, or caused by or related to the Gulf of Tonkin situation. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was provided another VA examination in March 2021 to determine if any diagnosed psychiatric disorder was related to his reported in-service assault of being struck by an anti-war protestor. The examiner opined that the Veteran's medical records and that day's examination did not support any diagnosis, and therefore, such did not support any claimed condition as being at least as likely as not due to service. The Board acknowledges that the examiner did not provide an opinion regarding whether any psychiatric disorder diagnosed during this appeal is related to his reported in-service personal assault. However, for the reasons set forth above, the Board concludes that the evidence does not support that the in-service assault occurred. Consequently, remand for an opinion regarding whether any diagnosed disorder during this appeal is related to that claimed assault is not necessary. The Veteran believes his acquired psychiatric disorder is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners' opinions. 3. Entitlement to service connection for a head scar The Veteran contends that he has a head scar due to being hit in the head with an object by an anti-war protestor. May 2015 Hearing Transcript at 5. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a head scar, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. Despite consistent treatment from May 2008 to November 2020, VA treatment records do not contain a diagnosis of a head scar. Skin examinations repeatedly show no blemishes, or any indication of a head scar. As discussed above, the Board concludes that the evidence does not support a finding that the in-service injury claimed by the Veteran occurred. The Veteran has not identified any treatment records pertaining to a head scar, nor has he indicated being diagnosed with a head scar. While the Veteran believes he has a current diagnosis of a head scar, and is competent to report having a scar, the Board gives more weight to the probative medical evidence failing to show any diagnosed head scar during this appeal. 4. Entitlement to service connection for a skull disorder The Veteran contends that he has a skull disorder due to being hit in the head with an object by an anti-war protestor. May 2015 Hearing Transcript at 5. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a skull disorder, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. Despite consistent treatment from May 2008 to November 2020, VA treatment records do not contain a diagnosis of a skull disorder. As discussed above, the Board concludes that the evidence does not support a finding that the in-service injury claimed by the Veteran occurred. The Veteran has not identified any treatment records pertaining to a skull disorder, nor has he indicated being diagnosed with a skull disorder. While the Veteran believes he has a current diagnosis of a skull disorder, and is competent to report experiencing symptoms, the Board gives more weight to the probative medical evidence failing to show any diagnosed skull disorder during this appeal. The Veteran in this case is not competent to provide a diagnosis because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24 Vet. App. 428. 5. Entitlement to service connection for a sleep disorder The Veteran contends that he has a sleep disorder that is either related to service or that may be secondary to a psychiatric disability. May 2015 Hearing Transcript at 10-13. Since the Board is denying service connection for a psychiatric disorder, it need not address service connection on a secondary basis. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that while the Veteran has a current diagnosis of obstructive sleep apnea, the preponderance of the evidence weighs against finding that it began during service or are otherwise related to an in-service injury, event, or disease. VA records show the Veteran was not diagnosed with sleep apnea until January 2014, decades after his separation from service. The Veteran has not reported experiencing symptoms of sleep apnea since service. Even if he had, he does not have the training or credentials to provide a diagnosis in this case or determine that any symptoms were manifestations of sleep apnea. Jandreau, 492 F.3d at 1377 n.4. No medical professional has provided any opinion relating sleep apnea to the Veteran's military service. Absent such evidence, there is no reasonable likelihood that a VA examination would result in findings favorable to the Veteran; a VA examination is therefore not "necessary." 38 C.F.R. § 3.159(c)(4). The Veteran believes his sleep disorder is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24 Vet. App. 428. Consequently, the Board gives more probative weight to the competent medical evidence failing to show that a sleep disorder is related to the Veteran's military service. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Barstow, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.